Law & the Courts

Trump Is Right to Point Out That Clinton Should Be Prosecuted

Clinton makes a point during the debate in St. Louis, Mo., October 9, 2016. (Reuters photo: Rick Wilking)
His rhetoric is overblown, but he’s correct that Hillary should be held to account for criminal conduct.

With due respect, the estimable Charles Krauthammer is way off base in his weekly column, addressing Donald Trump’s “threat, if elected, to put Hillary Clinton in jail.” (The headline refers to this threat as a “promise,” but I don’t take that to be quite what Charles — or, for that matter, Trump — is saying.) I wrote about this topic right after Trump raised it in the second presidential debate, in response to Trump detractors who posited the claim that Krauthammer now advances: viz., Trump is criminalizing politics with threats to persecute political opponents. I generally agree with these detractors regarding the GOP nominee’s flaws and antics; on this, however, their comparisons of Trump to brutal dictators are so beyond the pale they make Trump seem tame.

Krauthammer is right that Trump has gone too far in his rhetoric. Yet, he overstates the case in suggesting that Trump is breaching important political boundaries. While he describes these as boundaries of “discourse” and “democratic decency,” Dr. K implies that they involve something even more fundamental, and thus that the breach is more perilous.

Mrs. Clinton appears to have committed serious crimes that undermined both national security and recordkeeping rules designed to promote accountability in government. If you want to talk about a truly profound threat to democratic norms, that’s the place to start. Obviously, these offenses are not just relevant but essential to the political case that should be made against Clinton, and would be by any opponent, not just by the unconventional, undisciplined Trump. Also pertinent is the fact that government officials who engage in Clinton’s type of misconduct do go to jail — to refrain from stating this would be to diminish the gravity of the crimes.

Moreover, even Krauthammer concedes that Clinton deserved to be prosecuted: “FBI director James Comey’s recommendation not to pursue charges was both troubling and puzzling.” Consequently, I don’t see why anyone, including Trump, should be faulted for asserting that there appears to be strong evidence that Mrs. Clinton has committed egregious offenses, which warrant prosecution and would call for imprisonment if she were convicted after a fair trial. Unless I am reading him wrong, that is Charles’s position on the matter — otherwise, why the dig at Comey?

Where Trump has overstepped is in his articulation of these points, not the fact that he is making them.

Political rhetoric inevitably involves a degree of exaggeration, and we must distinguish it from the realm of law-enforcement, in which officials are obliged to be circumspect. At the Republican convention, the most effective speech was New Jersey governor Chris Christie’s scathing indictment (in the rhetorical sense) of Mrs. Clinton’s misdeeds. It prompted the “lock her up!” chants that have punctuated Trump campaign appearances ever since. Now, when Americans say that someone ought to be “locked up” over this or that — which we say quite a lot — we are not urging an end run around the due-process protections that apply from investigation and indictment through trial and sentencing.

That goes without saying. During Obama’s 2008 campaign, his surrogate (and later his attorney general) Eric Holder called for a “reckoning” against Bush officials he depicted as guilty of war crimes and all manner of Constitution-shredding. I don’t think Mr. Holder was saying “jail now, trial later” — even if many on the left would have been delighted by such an arrangement.

The Republican base is ballistic over the abuses of power evident in both Clinton’s offenses and the way the investigation of them was tanked. Trump needs to keep them fired up because his best case for election is Clinton’s awfulness, not his own merit. So I don’t see that there is anything objectionable in hammering the point that Clinton’s crimes were abominable and they deserve prosecution. That is true, so why shouldn’t Trump say so?

Where Trump goes over the line, though, is in doing exactly what President Obama did: making statements that predetermine the outcome. Obama essentially acquitted Clinton in public statements made while the investigation was ongoing. When such a thing is done by the head of the executive branch — the president to whom the attorney general and FBI director answer — it conveys the boss’s signal that no charges are to be brought. Similarly, when Trump, who is running to be the next chief executive, says that, were he the president, Clinton would be in jail, he is implicitly stating that this is the outcome he expects his administration to accomplish. Ditto when he reacts to the “lock her up!” chants by indicating agreement that she must be imprisoned.

If Krauthammer were simply saying that Trump should be much more careful in expressing the pledge to see that justice is done, I’d be right there with him. But he thinks the pledge itself flouts American principles. That is just not so.

Let me focus on two critical distinctions I think Krauthammer misses.

First, notwithstanding some over-the-top rhetoric, Trump has said he would have Clinton investigated by a special prosecutor. Charles pooh-poohs this, observing that Trump threatens to jail Clinton only “after appointing a special prosecutor, of course. The niceties must be observed. First, a fair trial, then a proper hanging.” Yet, a special prosecutor is not a mere nicety. It is the appointment of a lawyer and investigators who, though they still answer to the president, operate with independence from most if not all of the president’s political appointees in the Justice Department and FBI chain-of-command. If the special prosecutor has a reputation for integrity, the arrangement can give the investigation credibility.

This is exactly what President Obama did not do in the Clinton e-mails investigation. He kept the case tightly controlled by the FBI director and attorney general he had appointed, which is why many Americans, apparently including Charles, are convinced the investigation was “compromised by politics.” If Trump were of a mind to railroad Clinton, as Charles suggests, he would be taking the Obama approach. He would be talking about sacking the current, Obama-appointed FBI director and then having his own appointees at the Bureau and Justice Department reopen the investigation. But that is not what he is saying.

To be clear, I am not a fan of special-prosecutor arrangements because the appearance of independence can be an illusion. If the president appoints a political hack who still reports to the Justice Department and the White House, it really is a sham masquerading as objective law-enforcement. Still, the fact that Trump’s first impulse is to appoint an independent lawyer is commendable, and I would not dismiss it as window dressing.

My second disagreement pertains to the nature of Mrs. Clinton’s crimes. Trump is not talking about subjecting Clinton to a trumped up prosecution for being an enemy of the regime. He is talking about a legitimate investigation of real offenses — crimes that have nothing to do with opposing Donald Trump, crimes so serious that even the Obama administration investigated them, or at least went through the motions of doing so. Dr. K’s comparison to Putin, Chavez, and other “two-bit caudillos” is a gross exaggeration. It trivializes the monstrousness of regimes that actually do persecute dissent. It is meritless to suggest that being a member of the opposition party gives an official immunity from prosecution for real crimes, lest we be seen as violating the principle that “in America, we don’t persecute political opponents.”

It is meritless to suggest that being a member of the opposition party gives an official immunity from prosecution for real crimes.

Along these lines, Charles engages in a bit of revisionist history regarding “why we retroactively honor Gerald Ford for his pardon of Richard Nixon.” I agree with his assessment that the pardon probably cost Ford the presidency. But Krauthammer is wrong, both factually and constitutionally, when he contends that “Ford understood that jailing a president for actions carried out in the context of his official duties would threaten the very civil nature of democratic governance.”

The problem is Krauthammer’s omission of a critical detail: Nixon had been forced to resign on the verge of impeachment. That is, he had precisely been punished “for actions carried out in the context of his official duties.” Ford did not come close to suggesting that such punishment was inappropriate; he simply concluded that criminal prosecution on top of Nixon’s expulsion from office would put our then-reeling country (and Nixon himself) to unnecessary additional suffering.

I concur in Krauthammer’s assessment that this was an admirable decision, but it certainly was not required by “the very civil nature of democratic governance.” The Constitution explicitly provides that impeachment may be followed by prosecution in the courts. The framers of our system of democratic governance thus anticipated that corrupt public officials would be both removed from office and indicted under the criminal law.

Criminal prosecution is, of course, a matter of executive discretion, and that is highly relevant to our consideration. If President Obama had fired former Secretary Clinton (don’t snicker) or at least denied her future access to classified information by removing her security clearance (a measure many in the FBI reportedly endorsed), that would have doomed her presidential hopes. If the House had impeached her (as I’ve recommended), that might have had a similarly damaging effect, even though it would not have resulted in her being disqualified from future office (because Senate Democrats would have prevented her conviction if there had been an impeachment trial).

#related#That is to say: If Mrs. Clinton had been appropriately held accountable and subjected to some form of punishment or censure, as Nixon was, there would not be much political force to calls for her to be prosecuted. Trump, consequently, would not be threatening to put her in jail. The issue has resonance not because Clinton is Trump’s political adversary but because she committed serious offenses and was given a pass solely because she is a political heavyweight — because we all know politically powerless people who did what Clinton did would be in jail.

If we’re becoming a banana republic, the reason is that the ruling class can violate the law with impunity. And while Obama has used the Justice Department as a weapon against political dissenters, that is not what Trump is calling for.


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